Citation Nr: 1132616
Decision Date: 09/06/11 Archive Date: 09/12/11
DOCKET NO. 07-37 769 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to a compensable disability rating for malaria.
2. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. Haddock, Associate Counsel
INTRODUCTION
The Veteran had active service in the United States Marine Corps (USMC) from July 1966 to April 1969.
This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2000 and August 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.
The issue of entitlement to a higher initial disability rating for PTSD is addressed in the REMAND following the order section of this decision.
FINDING OF FACT
The evidence does not establish active malaria or residuals of active malaria such as liver or spleen damage.
CONCLUSION OF LAW
The criteria for a compensable disability rating for malaria have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.88, Diagnostic Code 6304 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.
The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).
The record reflects that the Veteran filed his claim of entitlement to an increased disability rating for malaria prior to the enactment of the VCAA. However, the Veteran was mailed a letter in September 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The September 2006 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim.
Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim).
The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence.
Accordingly, the Board will address the merits of the claim.
Legal Criteria
Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010).
It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2010).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
The Veteran's malaria is rated under Diagnostic Code 6304. Under this code, a 100 percent disability rating is warranted for active malaria. The accompanying Note states that the diagnosis of malaria depends on the identification of the malarial parasites in blood smears. If the Veteran served in an endemic area and presents signs and symptoms compatible with malaria, the diagnosis may be based on clinical grounds alone. Relapses must be confirmed by the presence of malarial parasites in blood smears. Thereafter rate residuals such as liver or spleen damage under the appropriate system. 38 C.F.R. § 4.88b.
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
In accordance with 38 C.F.R. §§ 4.1, 4.2 (2010) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.
In May 2000, the Veteran was afforded a VA examination. At that time, the Veteran reported that his first episode of malaria was in July 1969. He reported that since that time, he has periodically experienced malaria. He reported that the last time he had a fever was in May 1999. Upon physical examination the Veteran was reported to be well-developed and well-nourished. The Veteran was asymptomatic and had no manifestation whatsoever that would indicate malarial fever. His weight was 160 pounds and he was in well nutritional status. There was no residual malnutrition or vitamin deficiency. Heart was in normal sinus rhythm without murmur or gallop. There was no cervical lymphadenopathy. Lungs were clear bilaterally. The liver was noted to be only one finger breadth, sharp edge, nontender, and normal variant. Spleen examination was negative. This malarial film was negative. The examiner diagnosed fever of unknown origin, last occurrence in May 1999 without documentation of malarial parasites. The examiner also noted that there was no malarial fever identifiable since 1969.
In September 2006, the Veteran was afforded another VA examination. At that time, the Veteran reported that he had experienced recurrent malaria for the past 26 years. He reported that his skin would turn yellow once or twice a year, but could not say how long it would last. He reported experiencing intermittent chills and fever that would last 1-2 days and then abate. The Veteran reported that he had not received medical treatment for these episodes and reported that the last occurrence of symptoms was approximately one year ago. Upon physical examination, the Veteran's abdomen was soft and nontender with bowel sounds. There was no palpable organomegaly. The Veteran's complete blood count (CBC) test was normal with the exception of a slightly elevated mean platelet volume (MPV). The Veteran's liver functions were noted to be normal with the exception of a slightly elevated total billirubin, which was 1.1 with a normal range of 0.2-1.0, and a direct billirubin of 0.3, with a normal range of 0-0.2. The examiner continued the diagnosis of malaria, but noted that there was no medical or clinical evidence to support recurrent episodes of malaria.
A review of the record shows that the Veteran has received periodic treatment at the VA Medical Center for various disabilities. However, the treatment notes are mostly mental health in nature and there is no evidence indicating that the Veteran has ever received treatment for malaria or residuals of such at the VA Medical Center.
The Board notes that in an August 2011 statement, the Veteran's representative argued that the Veteran should be afforded a new VA examination for his service-connected malaria because the last VA examination was several years ago. The Board finds that there is no evidence indicating that the Veteran has malaria or any residuals. Additionally, there is no evidence indicating that the Veteran has received any treatment for the undiagnosed "fevers" he described at his VA examination, to include evidence indicating that they are recurrent episodes of malaria. Therefore, the Board finds that a new examination is not necessary in order to make a final decision with respect to this issue.
The Board finds that the Veteran is not entitled to a compensable disability rating for malaria. In this regard, he does not currently have active malaria and he has not had a confirmed outbreak of malaria since 1969.
Consideration has been given to assigning separate disability ratings for residuals resulting from the Veteran's previous outbreak of malaria. However, there is no evidence of record indicating that the Veteran experiences any residual symptoms as a result of his confirmed active malaria outbreak.
Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a compensable schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).
The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008).
In the case at hand, the record reflects the manifestations of the disability are contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order.
ORDER
Entitlement to a compensable disability rating for malaria is denied.
REMAND
The Board finds that additional development is required before the Veteran's claim of entitlement to an increased disability rating for PTSD is decided.
A review of the record shows that in January 2007, the Veteran returned to the VA Medical Center to begin mental health treatment. The treatment notes show that he was started on medication at that time. The most recent mental health treatment note of record is from April 2007. There is evidence of record indicating that the Veteran was involved in a rather severe motor vehicle accident shortly after this time. However, there is no evidence indicating that the Veteran did not continue with his mental health treatment despite the accident.
Additionally, the Veteran's last VA examination for his PTSD was in June 2007. In an August 2011 statement, the Veteran's representative argued that considering the nature of PTSD and its ever changing severity, the medical evidence of record was stale and the Veteran should be afforded a new VA examination in order to determine the current level of severity of all impairment resulting from his PTSD.
Therefore, the Board finds that the Veteran should be afforded a new VA examination in order to determine the current level of all impairment resulting from the Veteran's service-connected PTSD. Additionally, current treatment notes should be obtained before a decision is rendered with regard to this issue.
Accordingly, this case is remanded to the RO or Appeals Management Center (AMC) in Washington, DC for the following actions:
1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records.
2. Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from the Veteran's service-connected PTSD. The claims file must be made available to and reviewed by the examiner. The RO or the AMC should ensure that the examiner provides all information necessary for rating purposes.
3. The RO or the AMC should undertake any other development it determines to be warranted.
4. Then, the RO or the AMC should readjudicate the Veteran's claim on appeal based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action.
By this remand, the Board intimates no opinion as to any final outcome warranted.
The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs